On the
9th August 2000 the three accused appeared before the TY Resident
Magistrate Mr L. Nthabi facing a charge which read as follows.

"That
the said accused are charged with the crime of contravening Section 3
(2) of the Stock Theft Act No.4 of 2000.

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In that upon or about the 10th day of June 2000 and at or near Ha
Rankatlo in the district of Berea, the said accused each or other
or
all of them did unlawfully and intentionally have in their possession
two cattle of which there were reasonable suspicion that
are stolen
stock and failed to give satisfactory account for such possession."
(My underlining)

The three
accused pleaded not guilty to the charge. On the 8th September 2000,
Mr Ntlhoki representing all three accused, filed
a "Notice of
Exception" in terms of Section 160 of the Criminal Procedure and
Evidence Act of 1981 which reads:-

"(1) When the accused intends to apply to have a charge quashed
under section 159, or to except, or to plead any of the pleas
mentioned in section 162, except the plea of guilty or not guilty, he
shall give reasonable notice (regard being had to the circumstances
of each particular case)-

to
the Director of Public Prosecutions or his representative if the
trial is before the High Court; or

to
the public prosecutor if the trial is before a subordinate court; or

when
the prosecution is private, to the private prosecutor,

stating
the grounds upon which he seeks to have the charge quashed or upon
which he bases his exception or plea.

(2) The notice referred to in sub-section (1) may be waived by the
Director of Public Prosecutions or the prosecutor, as the case
may
be, and the court may on good cause shown, dispense with the notice
or adjourn the trial to enable the notice to be given."

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In my
view this was a motion to quash the charge and must necessarily have
been made before the accused pleaded. Section 159 of
the said Act
reads:-

"The
accused may, before pleading, apply to the court to quash the charge
on the ground that it is calculated to prejudice
or embarrass him in
his defence.

Upon
the motion under sub-section (1) the court may quash the charge or
may order it to be amended in such manner as the court
thinks just,
or may refuse to make any order on the motion.

If
the accused alleges that he is wrongfully named in the charge, the
court may, on being satisfied by affidavit or otherwise
of the
error, order it to be amended."

Be that
as it may, the argument on the exception was heard by the court on
the 14th September 2000 and the matter appears to have
been treated
by the court under Section 153 of the Criminal Procedure and Evidence
Act. It reads:-

"When
the accused excepts only and does not plead any plea, the court
shall hear and determine the exception forthwith, and
if the
exception is overruled he shall be called upon to plead to the
charge.

When
the accused pleads and excepts together, it shall be in the
discretion of the court whether the plea or exception shall be
first
disposed of."

The
grounds raised by the exception are the following:-

"(a)
That section 3 (2) of the Stock Theft Act No.4 of 2000 does not
create any offence.

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In my
view this was a motion to quash the charge and must necessarily have
been made before the accused pleaded. Section 159 of
the said Act
reads:-

The
accused may, before pleading, apply to the court to quash the charge
on the ground that it is calculated to prejudice or embarrass
him in
his defence.

Upon
the motion under sub-section (1) the court may quash the charge or
may order it to be amended in such manner as the court
thinks just,
or may refuse to make any order on the motion.

If
the accused alleges that he is wrongfully named in the charge, the
court may, on being satisfied by affidavit or otherwise
of the
error, order it to be amended."

Be that
as it may, the argument on the exception was heard by the court on
the 14th September 2000 and the matter appears to have
been treated
by the court under Section 153 of the Criminal Procedure and Evidence
Act. It reads:-

"When
the accused excepts only and does not plead any plea, the court
shall hear and determine the exception forthwith, and
if the
exception is overruled he shall be called upon to plead to the
charge.

When
the accused pleads and excepts together, it shall be in the
discretion of the court whether the plea or exception shall be
first
disposed of."

The
grounds raised by the exception are the following:-

"That
section 3 (2) of the Stock Theft Act No.4 of 2000 does not create
any offence.

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That
the acts alleged in the charge sheet have not been sanctioned as an
offence under the Stock Theft Act No.4 of 2000."

It is
common cause that the accused have been charged under section 3 (2)
of the new Stock Theft Act No.4 of 2000 which came into
operation on
the 3rd April 2000. It reads as follows:

"(2)
If, there are reasonable grounds for believing, or there is
reasonable suspicion that a person who is found in possession
of
stock, produce or both has acquired or received the stock or produce
unlawfully and is unable to give a satisfactory account
of such
possession, it shall be competent for any person authorised to do so
under the provisions of the Criminal Procedure and
Evidence Act 1981,
chief or police officer to arrest or cause to be arrested the person
without a warrant."

Under the
principle of legality (ius acceptum) –

"If
Parliament wishes to create a crime, an Act purporting to create such
a crime will best comply with the principle of legality
if it
expressly declares (a) that the particular type of conduct is a crime
and (b) what punishment a court must impose if it finds
a person
guilty of the commission of such a crime, (nulla poena sine lege).

...
However it is not very clear from the wording of the Act whether a
section or provision of the Act has indeed created a crime
or not. In
such a case, the function of the principle a legality is the
following - a court should only assume that a new crime
has been
created if it appears unambiguously from the wording of the Act that
a crime has in fact been created. If the Act does
not

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expressly
state that a particular type of conduct is a crime, the court should
be slow to hold that a crime has in fact been created,
this
consideration or rule corresponds to the presumption in the
interpretation of statutes that a provision of an Act which is
ambiguous must be interpreted in favour of the accused"-Snyman -
Criminal Law 3rd Ed P.40, Majola - 1975 (2) SA 727; Klopper
-1975 (4)
SA 773. In this regard the judge's function is not to create law but
to interpret it (iudicis est ius dicere sed non
dare).

The
learned Resident Magistrate having heard argument, upheld the
exception on the main reasoning that Section 3 (2) of the new
Stock
Theft Act 2000 did not create any offence but merely "empowers a
chief or police officer to arrest or cause to be arrested
a person
without a warrant under some specified circumstances ... and it stops
there .... it is neither an offence to be unable
to give a
satisfactory account of such possession ..." The accused who had
already pleaded were acquitted and discharged.
The court could not
assume inability to give a satisfactory account of possession to be
an offence because the Proclamation that
created such offence
(Section 16) was repealed in toto by the new Act.

Being
anxious about the "far reaching repercussions (of his ruling) in
cases of unlawful possession of livestock", the
learned Resident
Magistrate, rightly so in my view, has referred the matter for
review. This review presents an issue of great
importance because
section 3 (2) of the new Stock Theft Act does not specifically state
that inability to give a satisfactory account
of possession is an
offence. It raises the issue casus omissus.

The
charge has been inelegantly drafted because it alleges that "they
failed to give satisfactory explanation for such possession".
Under the new section it is the inability

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and not
failure to give a satisfactory account for such possession that is
made an arrestable conduct. In the case of Mapota Napo
vs Rex -
1971-73 LLR 5, Roper P stressed the need for the necessity to frame
charges under Stock Theft law correctly (Mojaki vs
Rex - 1971-73 LLR
53).

In my
view the draftsmanship of this section is characterised by
inelegance, imprecision and ambiguity. The section does not seem
to
clearly create an offence and the best way of doing so would have
been to use the wording in the old section 16 to the effect
that:-

"if such person is unable to give a satisfactory explanation of
such possession he is guilty of an offence and liable on conviction
to the punishment to which a person convicted of theft of that stock
or produce would be liable." (My underlining)

As Roper
P. observed in Napo's case (supra) "a reasonable belief that the
person has obtained possession of the stock unlawfully
gives the
chief or policeman power to arrest without warrant."

"...As an arrest can only be made for some offence, and the only
offence created by section (16) is the inability to give
a
satisfactory explanation".

The old
section 16 of the Stock Theft Proclamation was indeed comprehensive
enough to lucidly state:-

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"If there be reasonable grounds for believing that any person
who is found in possession of stock or produce has obtained
the
possession of such stock or produce unlawfully or if any such person
is proved to have been in possession of such stock or
produce
unlawfully it shall be competent for any chief or member of the
police force to apprehend or cause to be apprehended such
person
without warrant and if such person is unable to give a satisfactory
explanation of such possession he is guilty of an offence
and liable
on conviction to the punishment to which a person convicted of theft
of that stock or produce would be liable."
(My underlining).

The new
Stock Theft Act while repealing the old Proclamation has no principal
definition of theft of stock. In the old Proclamation
"Theft"
embraced besides actual stealing being or having been in unlawful
possession and not being able to give a satisfactory
account of such
possession.

The
draftsman of Section 3 (2) pruned, for reasons best known to him, the
salutary wording which creates an offence i.e. "...he
is guilty
of an offence and liable upon conviction to the punishment..."

Extensive
interpretation - in the face of these clear omissions - needs to be
given to the words employed in the Act.

8

"Extensive interpretation involves not only assigning to
particular words a wider connotation than their ordinary meaning
but
also reading further words into the Statute by way of implication.
The courts do this with circumspection where such implication
is
necessary in order to give efficacy to what has been expressly
provided and to prevent the intention of the legislature from
being
frustrated". - Devenish -Interpretation of Statutes p.76.

Under the
casus omissus rule the courts, quite rightly, have declined to fill
in omissions in statutes because extensive interpretation,
by its
very nature, is creative and involves judicial law making and indeed
the court comes thereby to the rescue of the draftsman
who has
produced a statute "which is nothing less than horrific in
detail" (Sir Rupert Cross - Statutory Interpretation
(1976) page
11-12).

When a
closer look is given to other provisions of the new Act, one observes
that most of them render their contravention an offence
(vide -
sections 4,5,6,8,9 and 10). The question then becomes: why were the
words "commits an offence" omitted in Section
3? Section 14
of the Act reads:-

"Unless
otherwise provided in this Act, a person who contravenes a provision
of this Act commits and an offence and is liable
to

.................................

.................................

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This
general penalty does not ameliorate the situation and in fact it
creates a dilemma of inviting resort to judicial law making.
On the
other hand, examination of all provisions of this Act clearly
indicates that their contravention constitutes offences whereas
section 3 merely empowers a chief or police officer to arrest and is
more of a directive provision in nature.

It is
trite principle of legality that an accused person ought not to be
found guilty of a crime and sentenced unless the type of
conduct with
which he is charged-

has
been recognised by law (common or statutory) as a crime (ius
acceptum)

in
clear terms - ius certum

before
the conduct took place.

Jurisprudentially
section 3 is a provision which involves four types of conduct-

possession
of stock;

in
regard to which there are reasonable grounds for believing that such
possession is unlawful

inability
of the possessor to give a satisfactory account of such possession.

arrest
by a chief or police officer.

The
provision as it stands does not contain clear prohibition or a
criminal norm and sanction. If the legislature inadvertently
omits to
criminalise a norm, then the legislature itself should correct the
error; "it should not be left to the court to

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speculate
on what the legislature wished to do and then be left to the court
itself to create a criminal norm"- Snyman supra,
page 42; nullum
crimen sine lege must apply more particularly because section 14 of
the Act imposes sanctions - S. v. Theledi -
1992 (1) SA 336.

I am
cushioned in what I say by the fact that arrest without warrant under
section 25 (1) (j) of the Criminal Procedure and Evidence
Act is for
specific offences e.g. any person reasonably suspected of being or
having been in unlawful possession of stock or produced
as defined in
any law for the prevention of theft of stock or produce.

In my
view, the exception was rightly upheld by the Resident Magistrate
firstly because even if an offence was created under the
new section
the charge was materially defective in alleging "failure"
and not the "inability". But even if
this court were to
exercise its judicial discretion to amend the charge to accord with
the wording of the subsection, I am of the
view that ex facie the
subsection does not create an offence.